HB 0449

1
A bill to be entitled
2An act relating to a public records exemption; amending s.
31004.43, F.S.; clarifying the public records exemption for
4proprietary confidential business information owned or
5controlled by the not-for-profit corporation operating the
6H. Lee Moffitt Cancer Center and Research Institute and
7its subsidiaries relating to trade secrets; expanding the
8public records exemption to include information received
9from a person in this or another state or nation or the
10Federal Government which is otherwise exempt or
11confidential pursuant to the laws of this or another state
12or nation or pursuant to federal law; providing for future
13review and repeal; providing a statement of public
14necessity; providing an effective date.
15
16Be It Enacted by the Legislature of the State of Florida:
17
18     Section 1.  Paragraph (b) of subsection (8) of section
191004.43, Florida Statutes, is amended to read:
20     1004.43  H. Lee Moffitt Cancer Center and Research
21Institute.--There is established the H. Lee Moffitt Cancer
22Center and Research Institute at the University of South
23Florida.
24     (8)
25     (b)  Proprietary confidential business information is
26confidential and exempt from the provisions of s. 119.07(1) and
27s. 24(a), Art. I of the State Constitution. However, the Auditor
28General, the Office of Program Policy Analysis and Government
29Accountability, and the State Board of Education, pursuant to
30their oversight and auditing functions, must be given access to
31all proprietary confidential business information upon request
32and without subpoena and must maintain the confidentiality of
33information so received. As used in this paragraph, the term
34"proprietary confidential business information" means
35information, regardless of its form or characteristics, which is
36owned or controlled by the not-for-profit corporation or its
37subsidiaries; is intended to be and is treated by the not-for-
38profit corporation or its subsidiaries as private and the
39disclosure of which would harm the business operations of the
40not-for-profit corporation or its subsidiaries; has not been
41intentionally disclosed by the corporation or its subsidiaries
42unless pursuant to law, an order of a court or administrative
43body, a legislative proceeding pursuant to s. 5, Art. III of the
44State Constitution, or a private agreement that provides that
45the information may be released to the public; and which is
46information concerning:
47     1.  Internal auditing controls and reports of internal
48auditors;
49     2.  Matters reasonably encompassed in privileged attorney-
50client communications;
51     3.  Contracts for managed-care arrangements, including
52preferred provider organization contracts, health maintenance
53organization contracts, and exclusive provider organization
54contracts, and any documents directly relating to the
55negotiation, performance, and implementation of any such
56contracts for managed-care arrangements;
57     4.  Bids or other contractual data, banking records, and
58credit agreements the disclosure of which would impair the
59efforts of the not-for-profit corporation or its subsidiaries to
60contract for goods or services on favorable terms;
61     5.  Information relating to private contractual data, the
62disclosure of which would impair the competitive interest of the
63provider of the information;
64     6.  Corporate officer and employee personnel information;
65     7.  Information relating to the proceedings and records of
66credentialing panels and committees and of the governing board
67of the not-for-profit corporation or its subsidiaries relating
68to credentialing;
69     8.  Minutes of meetings of the governing board of the not-
70for-profit corporation and its subsidiaries, except minutes of
71meetings open to the public pursuant to subsection (9);
72     9.  Information that reveals plans for marketing services
73that the corporation or its subsidiaries reasonably expect to be
74provided by competitors;
75     10.  Trade secrets as defined in s. 688.002, including:
76     a.  Information relating to methods of manufacture or
77production, potential trade secrets, potentially patentable
78materials, or proprietary information received, generated,
79ascertained, or discovered during the course of research
80conducted by the not-for-profit corporation or its subsidiaries;
81     b.  Proprietary and confidential information relating to
82business transactions resulting from research conducted by the
83not-for-profit corporation or its subsidiaries; and
84     c.  Reimbursement methodologies or rates; or
85     11.  The identity of donors or prospective donors of
86property who wish to remain anonymous or any information
87identifying such donors or prospective donors. The anonymity of
88these donors or prospective donors must be maintained in the
89auditor's report; or.
90     12.  Any information received by the not-for-profit
91corporation or its subsidiaries from a person in this or another
92state or nation or the Federal Government which is otherwise
93exempt or confidential pursuant to the laws of this or another
94state or nation or pursuant to federal law.
95
96As used in this paragraph, the term "managed care" means systems
97or techniques generally used by third-party payors or their
98agents to affect access to and control payment for health care
99services. Managed-care techniques most often include one or more
100of the following: prior, concurrent, and retrospective review of
101the medical necessity and appropriateness of services or site of
102services; contracts with selected health care providers;
103financial incentives or disincentives related to the use of
104specific providers, services, or service sites; controlled
105access to and coordination of services by a case manager; and
106payor efforts to identify treatment alternatives and modify
107benefit restrictions for high-cost patient care.
108     Section 2.  Subparagraph 1004.43(8)(b)12., Florida
109Statutes, is subject to the Open Government Sunset Review Act of
1101995 in accordance with s. 119.15, Florida Statutes, and shall
111stand repealed on October 2, 2010, unless reviewed and saved
112from repeal through reenactment by the Legislature.
113     Section 3.  (1)  The Legislature finds that it is a public
114necessity that trade secrets of the H. Lee Moffitt Cancer Center
115or its subsidiaries, as defined in s. 688.002, Florida Statutes,
116be confidential and exempt from public disclosure. In accordance
117with that definition, a "trade secret" consists of information
118that derives economic value, actual or potential, from not being
119readily ascertainable by others and that is the subject of
120reasonable efforts to maintain its secrecy. The Legislature has
121determined that the disclosure of such information would
122adversely affect the H. Lee Moffitt Cancer Center and Research
123Institute and its subsidiaries, which are resources of the State
124of Florida, and would create an unfair competitive advantage to
125a person receiving such information.
126     (2)  Pursuant to s. 119.15, Florida Statutes, the
127Legislature finds that the amendment to s. 1004.43(8)(b)10.,
128Florida Statutes, referencing information relating to methods of
129manufacture or production, potential trade secrets, potentially
130patentable materials, or proprietary information received,
131generated, ascertained, or discovered during the course of
132research conducted by the H. Lee Moffitt Cancer Center and
133Research Institute or any of its subsidiaries, and business
134transactions resulting from such research, does not
135substantially amend the existing exemption. The Legislature
136finds and declares that each of the classes of information
137specified meets the test of being a "trade secret" within the
138meaning of the term as defined in s. 688.002, Florida Statutes.
139To fulfill its legislative mandate of research, education,
140treatment, prevention, and the early detection of cancer, an
141exemption of confidential and proprietary information relating
142to business transactions will allow the not-for-profit
143corporation and its subsidiaries to more effectively partner
144with other researchers. Although information relating to
145business transactions may not qualify as intellectual property,
146the terms and pricing of a research transaction and, in some
147cases, the very fact of a research transaction may be considered
148confidential information concerning an entity. This exemption
149will assure collaborating partners that their confidential
150business information will remain confidential and exempt from
151public disclosure if shared with the not-for-profit corporation
152or its subsidiaries. The Legislature finds that the ability of
153the not-for-profit corporation and its subsidiaries to conduct
154meaningful scientific research and meet their obligations will
155be significantly impaired if certain proprietary business
156information or scientific research is not made confidential and
157exempt from public disclosure. Specifically, the Legislature
158finds that it is a public necessity to make exempt and
159confidential proprietary business information or scientific
160research that relates to methods of manufacture or production,
161potential trade secrets, patentable material, actual trade
162secrets as defined in s. 688.002, Florida Statutes, or
163proprietary information received, generated, ascertained, or
164discovered by or through the not-for-profit corporation or its
165subsidiaries because the disclosure of this information would
166negate the benefit expected by exposing valuable proprietary
167work to competitors. Business transactions resulting from
168scientific research must be held confidential and exempt from
169public records requirements because the disclosure of such
170information would create an unfair competitive advantage for the
171person receiving such information. Such an advantage would
172adversely impact the
173not-for-profit corporation and its subsidiaries. If confidential
174and exempt information regarding research in progress were
175released pursuant to a public records request, others would be
176allowed to derive benefit from the research without compensation
177or reimbursement to the not-for-profit corporation or its
178subsidiaries. Without the exemptions provided for in this act,
179the disclosure of confidential and exempt information would
180place the not-for-profit corporation or its subsidiaries on an
181unequal footing in the marketplace as compared with other
182research competitors whose information is kept confidential and
183exempt. The Legislature finds that disclosure of confidential
184and exempt information would adversely impact the not-for-profit
185corporation or its subsidiaries in fulfilling the mission of
186research.
187     (3)  The Legislature further finds that information
188received by the not-for-profit corporation or its subsidiaries
189from a person in this or another state or nation or the Federal
190Government which is otherwise exempt or confidential pursuant to
191the laws of this or another state or nation or pursuant to
192federal law should remain exempt or confidential because the
193highly confidential nature of cancer-related research
194necessitates that the not-for-profit corporation or its
195subsidiaries be authorized to maintain the status of exempt or
196confidential information it receives from the sponsors of
197research. Without the exemptions provided for in this act, the
198disclosure of exempt and confidential information would place
199the not-for-profit corporation on an unequal footing in the
200marketplace as compared with its private health care and medical
201research competitors that are not required to disclose such
202exempt and confidential information. The Legislature finds that
203the disclosure of such exempt and confidential information would
204adversely impact the not-for-profit corporation or its
205subsidiaries in fulfilling their mission of cancer treatment,
206research, and education.
207     Section 4.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.